Anthony J. Sassan

Last week, the United States Supreme Court addressed the issue of whether police officers may detain a driver of a vehicle for a short period of time in order to await the arrival of drug-sniffing dogs, after all of the lawful purposes of the traffic stop have been concluded, when the officer has no reasonable suspicion of any additional criminal activity.

In Rodriguez, an officer executed a traffic stop because the defendant was driving on a highway shoulder. After the stop was in effect, the officer attended to all issues regarding the stop, including confirming the validity of both the driver’s and passengers’ driver’s licenses. The officer also issued a warning for the traffic offense. Once the warnings were issued, the officer asked the driver for permission to walk a drug-sniffing dog around the vehicle. The defendant subsequently refused, resulting in the officer detaining him until a second officer arrived several minutes later with the drug-sniffing dog. Thereafter, the dog indicated the presence of drugs, and the subsequent search revealed methamphetamine.

The Appellate Court affirmed the trial court’s denial of the defendant’s motion to quash the search. In reversing the Court of Appeals, however, the Supreme Court in Rodriguez held that absent reasonable suspicion, police extension of a traffic stop in order to conduct a drug sniff violates the Constitution’s Fourth Amendment shield against unreasonable searches. In Rodriguez, the Court refused to allow for the extension of the duration of a routine traffic stop after all of the purposes of the traffic stop had been completed absent specific articulable facts which established a reasonable suspicion of further evidence of criminal activity that would justify the detention and drug sniff. In so doing, the court confirmed the validity of Illinois v. Caballes, which held that the use of a drug sniffing dog during the course of a legal stop even without additional articulable circumstances of criminal activity is valid.

As a result of the Rodriguez opinion, officers are given more clarity as to when and under what circumstances drug-sniffing dogs may be utilized during a routine traffic stop. In this regard, the Court in Rodriguez provides the following direction to law enforcement officers:

That use of a drug-sniffing dog during the course of a legal traffic stop remains valid;

That the officer must be able to identify and present additional, specific articulable facts which would establish reasonable suspicion of additional criminal activity if the officer chooses to detain the driver of a motor vehicle after the initial purpose of the traffic stop has concluded; and

Even a continued detention of a short duration (de minimis intrusion) while waiting for the drug-sniffing dog after the purpose of a traffic stop has concluded without additional facts of other criminal activity violates the Fourth Amendment and will render a subsequent search inadmissible.

As a result of Rodriguez, arresting officers should be extra observant and be able to identify the specific, objective, articulable facts which would justify continued detention after the conclusion of the purpose of the traffic stop if they suspect the driver has evidence of criminal activity in the car and wish to utilize the services of drug-sniffing dog.

With the recent police shootings of Michael Brown in Ferguson, Missouri, and 12-year-old Tamir Rice in Cleveland, as well as the death by strangulation of Eric Garner at the hands of city police officers in New York City, comes a renewed national debate — whether it is necessary to substantially change the grand jury process as well as acceptable police tactics in citizen encounters. While the heightened awareness of these cases may lead to changes in the grand jury system as well as the review of department policies and procedures, a recent lawsuit filed in the Northern District of Illinois also raises concern for the financial aspect of these tragic encounters.

In November 2014, one of the municipal insurers for the Village of Oak Lawn filed a federal lawsuit seeking a declaratory judgment and requesting the court to order that the insurer not be required to pay its portion of a $3 million settlement to a resident who was shot six times by an Oak Lawn police officer. In the underlying lawsuit, the plaintiff was shot six times at his house after two Oak Lawn police officers responded based on a report of a drunk and suicidal man. Upon arriving at his house, the officers encountered the plaintiff who was acting despondent and threatening them with a large knife. After it appeared as though the plaintiff was about to throw the knife at one of the officers, an officer shot the man with a stun gun. He fell to the floor but then again rose to his knees and lifted his knife. At this point, the other officer fired six shots, nearly killing the plaintiff and causing severe and permanent injury. In the underlying civil lawsuit filed by the plaintiff, the Village entered into a settlement for $3 million. The declaratory action was then filed by the Village’s excess insurance carrier for the $1 million portion of the settlement not covered by the Village’s primary insurance carrier.

In the federal declaratory action, the Village’s insurance carrier argued that it is not required to pay its portion of the $3 million pursuant to its liability insurance with the municipality because (1) the municipality failed to notify the insurance company of the shooting until nearly three years after it occurred, and (2) the officers’ conduct described in the underlying lawsuit constituted “willful and wanton conduct” which was excluded under the policy.

While this case remains pending, it serves as a reminder to all municipalities who may be wrestling with the effects of the recent tragic encounters between citizens and police. to also re-evaluate their insurance coverage and what may or may not be covered involving the use of deadly force by their police officers. The name of the case pending in the Northern District of Illinois is Essex Ins. Co. v. Village of Oak Lawn, et al., N.D.Ill. Case #: 14 CV 4572.

In December 2013, the Illinois Appellate Court decision in Abruzzo v. City of Park Ridge illustrates the significant financial exposure local governments face when first responders (in this case paramedics) fail to follow proper protocol when responding to calls that may appear routine. Previously, the Illinois Supreme Court had ruled that the limited immunity contained in the Emergency Medical Services System Act (“EMS Act”) as set forth in 210 ILCS 50/1 et seq. applied instead of the absolute immunity for failure to evaluate, diagnose, or prescribe treatment for an illness or physical condition as set forth in the Local Governmental and Governmental Employees Tort Immunity Act. In light of this earlier ruling by the Illinois Supreme Court, the City was entitled to only a qualified immunity which recognized liability where a plaintiff establishes wilful and wanton conduct on the part of first responders for failure to evaluate, diagnose, or prescribe treatment.

The facts in Abruzzo were that a father called 911 because his sleeping son, with a history of breathing problems, was not responding to his father trying to wake him. By the time the paramedics arrived, the son had awakened and did not exhibit any visible signs of illness or other adverse condition. Based solely on their visual observation of the son, the paramedics failed to follow the standard operating procedures (“SOP”) of the Saint Francis EMS system which required a general patient assessment. They left without administering any tests or treatment. Later that night, the son again became unresponsive, the father again called 911, which dispatched paramedics who happened to be different paramedics from the first call. The son did not regain consciousness this time, and the paramedics transported the son to the hospital where he was later pronounced brain dead and removed from respirators. After trial, the jury found that the first set of paramedics acted wilfully and wantonly, and returned a verdict in favor of the Plaintiff and against the City in the amount of $5,187,500.

The published opinion provides a detailed summary of the trial testimony and highlights the fact that the paramedics who responded to the first call were impeached on several occasions; including that they had been told of the son’s history of breathing problems and asthma. Here, knowledge of the history of breathing problems or asthma would have required the paramedics to follow the SOPs of the St. Francis EMS system. Additionally, the opinion described the testimony of the father that after his son told him that the pills he was taking made him tired, one of the paramedics who heard the statement “kind of rolled his eyes like with an attitude, like why would you bother calling us, like he was put out.”

An important takeaway is that when responding to calls that may appear routine, a responder’s inattention to a condition, illness and the relevant protocol can constitute wilful and wanton conduct resulting in significant financial exposure to the municipality.

One of the City’s theories advanced at trial is that the paramedics “did not have a patient” to treat because of their observation of the son apparently being awake, alert and responsive when they arrived at the house. The City also argued that the paramedics were not told of the son’s history of breathing problems and asthma. The jury obviously resolved the issues of witness credibility in favor of the plaintiff and ultimately decided that the paramedics exhibited a “conscious disregard” of the son’s medical condition and the required protocol based on their knowledge of his history of breathing problems and asthma when it found for the Plaintiff and issued the nearly $5.2 million verdict.

Practice Points: While first responders routinely face challenging situations, tend to be overworked, and see people at their worst, the appellate court’s affirming of the above verdict should send a strong message to local government responders to never take apparently routine situations for granted. Paramedics and all first responders should follow the required protocols despite the fact that the situation may appear not to require the protocol. Additionally, paramedics and other first responders must remember to act professionally in all stages of their duty, whether dealing with the public, following the proper protocol, or when preparing for and testifying at depositions and trials so their credibility as witnesses will be without question. Finally, this opinion demonstrates that what appears to be carelessness by first responders can result in significant financial exposure, as a $5.2 million judgment can be devastating to a self-insured small municipal government’s budget for many years.